Right to Privacy in the Workplace in the Information Age

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Fri, 17 Mar 2006 20:08:33 -0800 (PST)

Right to Privacy in the Workplace in the Information Age

 

 

 

 

 

Right to Privacy in the Workplace in the Information Age

© Copyright 1995 Lloyd L. Rich

 

As traffic on the " information superhighway " continues to explode a

number of substantive questions about the use and abuse of these

information networks arises. One issue of primary concern is whether

the current law provides adequate protection for the individual's

right to privacy in the workplace from threats posed by computer

technology, electronic eavesdropping, video and sound recording

equipment, and databases filled with personal information. What are

the ramifications for an employees' right to privacy in the workplace?

Does an employer have the right to search an employee's computer files

or review the employee's electronic mail ( " E-mail " )?

 

The Right to Privacy

 

The right to privacy plays a unique role in American law and society.

Privacy, although not explicitly protected by the Constitution, is

considered a core value by most Americans. It has also taken on

multifarious meanings so that it no longer conveys one coherent

concept. Privacy rights, guaranteeing an individual's right to a

private life, find their authority in the Constitution, state

constitutions, federal and state statutes, and tort law judicial

decisions.

 

When the framers wrote the Constitution and the Bill of Rights they

specifically addressed that day's most pressing privacy fears: (1)

that government would search one's home whenever it desired and (2)

the quartering of troops in the home. The framers, however, were

unable to address future changes in technology and the myriad of

privacy concerns that have evolved as new technologies permeated their

way into our society. Therefore one must ask whether the law

protecting the right to privacy has evolved with the new technologies

to ensure the vitality of the Fourth Amendment.

 

The Supreme Court has broadly defined privacy as the right of the

individual to control the dissemination of information about oneself.

Privacy as guaranteed by the U.S. Constitution differs in two

significant ways from privacy protected by tort law: (1) the types of

acts constituting an invasion of privacy are very different, and (2)

the type of protection provided to individuals - constitutional

privacy protects against governmental intrusion while tort law

primarily protects against invasion by private parties. Fourth

Amendment privacy rights only apply in those situations where the

government is the primary actor, however it encompasses government

employees and some government contractors whose activities might be

considered as state action. Twenty-four states, including Colorado,

through state constitutional provisions or statutes protect the

individuals' right to privacy. Some of these constitutional provisions

or statutes have been held to create a civil claim for invasion of

privacy by private parties, while others have not.

 

 

The U.S. Constitutional Framework

 

The Fourth Amendment provides " [t]he right of people to be secure in

their persons, houses, papers and effects, against unreasonable

searches and seizures ... . " Restrictions imposed by the Fourth

Amendment are effective against the federal government while the

Fourteenth Amendment imposes these restrictions on state and local

governments. The Fourth Amendment is not effective against private

entities.

 

As a starting point it must be recognized that electronic monitoring

did not fit the traditional definition of a search. This position

changed when the Supreme Court held that electronic listening and

recording of telephone conversations without a warrant constituted an

unreasonable search and seizure that violated the Fourth Amendment.

Subsequently, when determining whether an employee has an " expectation

of privacy " the courts have employed the following tests: (1) a

subjective test which evaluates the means by which an employee has

attempted to protect his/her privacy, (2) an objective test which

evaluates the expectation of privacy an employee has in his office or

desk in light of security measures and surveillance of employees in

the workplace, and (3) a reasonableness standard which judges whether

the inception and the scope of invasion of privacy is reasonable under

the circumstances and thereby attempts to balance the government's

need for supervision, control and an efficient workplace against the

employee's expectation of privacy.

 

Court-made and statutory law have purported to protect a government

employees' workplace privacy, however the reality of case law is that

the protection afforded to public employees for work-related search

and seizure is minimal. The seminal case with regard to the

" reasonableness standard " , O'Connor v. Ortega, held that the

reasonable standard applies to supervisory searches of public

employees. Ortega stands for the proposition that if an employee has a

" reasonable expectation of privacy " then one must analyze the

reasonableness of the search under the circumstances, i.e.,

supervision, control and efficiency. Therefore, a public employee has

a reasonable expectation of privacy, but it is a qualified one that is

subject to the " operational realities " of the workplace. Although

Ortega only focused on public employees the decision implied that

private employees were not afforded protection.

 

Ortega further suggests that E-mail would be considered an employer

tool that is used by employees for work-related communications. If

this is the case, and the employer's interests outweigh those of the

employee, and privacy interests are less in the workplace than in the

home, it becomes highly likely that Ortega extends to E-mail with the

probable result that E-mail will be precluded from privacy protection.

 

When analyzing the results of Ortega one needs to ask certain

questions concerning future implications of this decision in the

workplace such as: (1) What is the impact upon employee efficiency?

(2) Is the employer and employee placed in an adversarial position

with regard to the issue of " trust " ? (3) Will there be competitive

disadvantages for the employer? and (4) What about employee dignity?

 

Subsequent decisions, such as Schowengerdt v. General Dynamics Corp.,

have followed Ortega and further weakened, and possibly practically

eliminated, an employee's right to privacy in the computerized

workplace. Schowengerdt held that the employee had a reasonable

expectation to privacy in work areas of exclusive use to the employee,

such as the employee's office, unless the employer had previously

notified the employee that the employee's office was subject to a

work-related search on a regular basis. The court concluded that

despite the employee's reasonable expectation to privacy in his office

that a warrantless search of the office was permissible when it was

work-related and reasonable under the circumstances.

 

Federal Statutes

 

The federal government enacted the Electronic Communications Privacy

Act of 1986 (ECPA) because the Federal wiretap statute failed to

provide sufficient protection for modern computer transmission

technologies. The primary purpose of ECPA is to provide protection

against unauthorized surveillance of electronic communications. ECPA

protection extends to textual information and transmissions of private

carriers. ECPA although not specifically providing privacy protection

for E-mail systems - court decisions have focused on cellular phone

transmissions - does provide protection from unauthorized users who

break into the system, steal or manipulate information or damage the

system. One difficulty with ECPA is that many commentators read the

provider exception to exclude acts of private employers, however,

there is nothing in the legislative history that indicates that

Congress did not intend ECPA to apply to the situation where a private

employer monitored an employee's E-mail transmissions. Congress in an

attempt to close this gap introduced legislation in 1993, Privacy for

Consumers and Workers Act, that while not banning electronic

monitoring, does protect employees by granting them the right to know,

i.e., the employee must be given notice, when they are being monitored

or recorded electronically by their employer while performing their job.

 

The State Framework

 

Currently one might contend that the best place to find privacy

protection for private employees E-mail is in respective state

constitutions and statutes. The federal courts have stated that the

states may enact greater privacy protection than that required by

ECPA. Furthermore state wiretapping and eavesdropping statutes can

provide greater privacy protection than respective federal

legislation. Today the right to privacy is recognized in almost all

states by statute or common law decisions. Many states have enacted

statutes that appear to protect privacy that encompasses technology

similar to E-mail. A difficulty with state court privacy decisions is

that they have traditionally favored the employer with the effect that

employees have had minimal privacy in the workplace. These decisions

have focused upon the employer's interest of assuring the work product

and protecting against theft and fraud in the workplace. Therefore one

crucial policy decision that must be resolved is whether computer

technology has so shifted the balance of control that new legislation

is required to better protect an employee's right to privacy in the

workplace. One possible starting point for this discussion is whether

E-mail should be considered analogous to mail and telephone conversations.

 

Since many state constitutions are interpreted as providing greater

privacy protection than the Constitution it would not be beyond the

scope of the state's highest court to regard E-mail within the scope

of a state's anti-wire tapping or eavesdropping statutes particularly

where the legislative " intent " supports such a reading or where the

state courts have implied such a reading.

 

The Tort Framework

 

It may be that the basic legal foundation for private sector employee

privacy protection is the common law of torts, specifically privacy

protection against the tort of " intrusion " . The Restatement, Second of

Torts ¤ 652A provides that " one who invades the right to privacy of

another is subject to liability for the resulting harm to the

interests of the other. The right to privacy is invaded by the

unreasonable intrusion upon the seclusion of another[.] " The

Restatement should encompass electronic communications since an

" unreasonable intrusion " does not require that the intrusion be physical.

 

Electronic Privacy

 

The framers of the Constitution could not address the myriad of

privacy concerns that evolved as new technologies proliferated and

became a part of an individual's everyday life at home and in the

workplace. Computers and digital communication technologies present a

serious challenge to our legislators, judges and legal system

requiring them to react to these new developments while constantly

balancing the individual's civil liberties and the needs of society.

 

The court must continuously be vigilant in balancing the rights of the

employee and the employer. This is especially necessary when a privacy

cause of action involves new technologies and a claim by the employee

that his privacy has been invaded by the employer. It becomes even

more pressing when statutory or common law has not addressed the

privacy issue with respect to the new technology or the old law does

not clearly cover the issue of privacy that is at question. When this

occurs the court must decide whether the newly-created privacy issues

may be brought within the scope of protection provided by existing

privacy law.

 

 

 

 

If your not outraged your not paying attention!!!!!!!!!

 

" All tyranny needs to gain a foothold is for people

of good conscience to remain silent "

-- Thomas Jefferson -

 

NOTICE: Due to Presidential Executive Orders, the National Security

Agency (NSA) may have read this email without warning, warrant, or

notice. They may do this without any judicial or legislative

oversight. You have no recourse, no protection..........

 

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